Washburn on Membership Disputes: Should US Trample on Sovereignty?

A recent Associated Press article called “Disenrollment leaves Natives 'culturally homeless'” talks about the "disenrollment epidemic" that has been sweeping through Indian country for the past several years.

The disenrollment issue came under the spotlight in 2006 with the Cherokee Nation’s disenrollment of the descendants of the Cherokee Freedmen, freed African slaves who became citizens of the Cherokee Nation in accordance with a treaty with the U.S. government after the Civil War ended. The case is still being played out in the courts. But since then more and more tribes have become embroiled in membership disputes, which often go hand in hand with leadership disputes. Currently, as AP points out, there are disenrollment conflicts at the Confederated Tribes of the Grand Ronde, the Saginaw Chippewa Indian Tribe of Michigan and the Nooksack Indian Tribe, to name a few.

Although a 1978 Supreme Court decision says that tribal governments have sole authority to determine membership, both tribal members targeted for disenrollment and the tribal governments that attempt to disenroll them often turn to the Bureau of Indian Affairs for help in resolving the conflict. The Interior Department’s Assistant Secretary-Indian Affairs Kevin Washburn talked to Indian Country Today Media Network about how difficult these cases are.

Emphasizing that he was speaking in general terms and not about any specific tribe, Washburn told ICTMN that issues surrounding tribal leadership and membership disputes “are the hardest questions that I face,” because they raise core questions about the fundamental meaning and practice of sovereignty.

“I think the question is, should tribes always be sovereign and self-governing? Or are there times when the United States should trample over their sovereignty and self-governance for some other purpose – the principle of justice or equity or something like that?” Washburn said.

And if it’s okay for the U.S. to step in and trample over tribal sovereignty and self-governance, where do you draw the line?

“One can make a solid argument that the United States never has any business trampling on tribal sovereignty and self-governance, but that’s not satisfying to everyone because we all see occasionally a tribe doing something that well-thinking people outside the tribe disagree with. These are just agonizing decisions and I’m not convinced that the United States is better at making these decisions on average than tribes are at making them themselves,” Washburn said.

As sovereign nations, perhaps tribes should be looking to other authorities for conflict resolution, he suggested.

“There are other forums for deciding tribal disputes that might better serve tribes than the United States. A lot of what we see are human rights violations, at least arguably so, and the United States is not the only entity that has an interest in policing human rights violations. Ultimately, if the tribe is going to be sovereign it has to make these decisions for itself. That doesn’t mean that it’s not subject to criticism by human rights organizations,” Washburn said. “I’m not sure the United States should be the one policing human rights violations in the world, even by tribes… [Sometimes it takes] a heck of a long time to wait while injustice is happening, but I think the tribe needs to find its way through the darkness to the light and it’s hard to know how the United States can be helpful in that process sometimes. We often get entreaties from both sides to get involved, but once we get involved how do we not get involved in the future?”